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Monday, February 25, 2013

Is Targeted Killing War?

by Lisa Hajjar

Bradley Jay Strawser begins his essay by positing that the debate over drones is prone to rigid and oversimplified pro and con arguments which are unsuited to grappling with the “deep-seated moral tension” manifest in the rise of unmanned aerial vehicles armed with missiles. He argues that there is a pressing need and value in assessing drones as an object of moral theory distinct from their actual use. He uses as an empirical example the area where drones actually have been used most, the Federally Administered Tribal Areas (FATA) of Pakistan, to illustrate a moral abstraction and draw a conclusion: If the war in FATA is a just war worth fighting and the targets of drone strikes worth killing, then “a relatively strong (but highly conditional) case can be made that drones are the best option (or least bad option) presently available with which to engage this fight.”

To set up the abstract moral argument about drones as a weapons technology, Strawser recruits nuclear weapons as a comparative example. What makes nukes patently immoral “in accordance with just war theory constraints” is their inherent (technological) incapacity to discriminate between legitimate and illegitimate targets (i.e., combatants and civilians) as well as their inherently disproportionate effects (i.e., total destruction and long-term devastation). But nuclear weapons are neither technologically nor morally comparable to drones. The only thing they have in common is that both are weapons. Rather, drones are like tanks or helicopter gunships or fighter planes, all of which—unlike nukes—have the capacity to kill with discrimination and in ways that are proportional to the value of the target. Thus, in abstract terms if the purpose to which drones or tanks or helicopter gunships or fighter planes are used is “just,” then there is nothing inherently immoral in using any of them.

However, if we want to make an abstract moral argument about drones specifically, we have to isolate what distinguishes drones from other similar killing technologies: drones are unmanned. Here Strawser makes a rather rigid claim: “In fact, drones offer clear normative advantages by better protecting their operators from harm and by being more accurate in hitting their intended targets than other weapon platforms...” Leaving aside the accuracy assertion (which is debatable[1]), if drones offer a clear advantage to their operators, it is an advantage that compares to the combatant who perfidiously disguises himself to approach and kill his target unawares or the sniper who kills from a distance. Perfidy in the context of war is a war crime because the advantage the combatant gains from disguised sneak attack is illegal, and sniping is at the outer margins of what we would call “battle” because distance and camouflage offer degrees of protection to the shooter that those who engage their enemies directly do not enjoy. Being present in or proximate to the battle, or even flying manned crafts above targets and risking being shot down are the kinds of “disadvantages” that unmanned lethal technology eliminates.

Thus, one key question that drone warfare raises is whether it is moral (or legal) to be in war and be able to kill surreptitiously and systematically without the risk of being killed. Strawser blends a jus in bello contention that drones are moral because they are capable of proportionate violence, and a jus ad bellum argument that fighting militants in FATA is a just war. Thus, he piggybacks the contention that the use of drone technology to wage the war in FATA is just because the war is just. The insight we might draw from his reasoning is that battle-less wars and surprise attacks are moral.

The use of drones, at least in the ways they are so hotly debated, is a technological innovation to the practice of targeted killing. To contemplate the abstract morality of drones, we must deal with the question of whether targeted killing is moral, and this begs a more complicated question: Is targeted killing “war” and if so, what kind of war is it?

Targeted killing is morally, legally, and practically distinct from other kinds of killing. It is distinct from assassination, according to its advocates, because the context in which the killing occurs is war, and in war states are permitted to kill their enemies on or off the battlefield. (Israel pioneered this reasoning as official policy in November 2000, and the US followed suit in 2002.[2]) Thus, they would argue, there is nothing more immoral or illegal about targeted killing than other types of wartime killing, as long as the killing adheres to rules of proportion, distinction and so on.[3]

Even if one were to accept that targeted killing is not assassination because it occurs in the context of war, it is distinct from killing the enemy in battle because targets are attacked at times and in places when they are not directly engaged in armed conflict. (Killing people in battle or during hot pursuit is, by definition, not targeted killing.) Those who advocate the morality of targeted killing hitch their arguments to the concept of imminence, namely that people who are designated for death in this manner pose an imminent, dangerous and violent threat, and that killing them is the only available means of averting that threat. Therefore, advocates argue, the legitimacy of targeted killing is equivalent to killing enemies during direct hostilities. Whether a target actually poses some kind of imminent threat is a matter of facts and accurate intelligence. But to accept that targeted killing is abstractly moral would require accepting the expansion and thus distortion of the concept of “hostilities.” The distortion arises from what distinguishes targeted killing from the conventions of war: surreptitious and riskless killing, as well as the absence or negation of elemental rules of armed conflict such as hors de combatimmunity or individual surrender.

Targeted killing is a small-scale tactic to strike at individuals, but its logic is that of total war. In that targeted killing currently is used to wage “wars on terror,” the total war logic is that the war will (or can or should) go on until terrorism is destroyed; surrender, negotiation or armistice are inconceivable. Wars on terror are, of course, asymmetric and unconventional wars. The human enemies—the perpetrators and abettors of terrorist acts—are elusive, dispersed among civilian populations, and “real.” But how is this reality conceived in the total war logic embraced by those who direct and command wars on terror? In fact, the practice of targeted killing and the discourse supporting it helps us understand this. Juxtaposed against the messy and amorphous concept of terrorism is a kind of certainty about the existence of identifiable (and killable) terrorists. The practice of targeted killing, whether by drones or other means, manifests as a lethal whack-a-mole project to eliminate what is imagined and proclaimed to be a finite number of terrorists. The logic behind the practice is that if all or enough terrorists are killed, then terrorism will end, and so will the war. Oh glory day.

As critics of drone warfare correctly point out and investigators and analysts can empirically support,[4] such attacks alienate and enrage communities and societies within which they occur. In Pakistan and Yemen, in particular, accelerating drone warfare and “collateral damage” (i.e., civilian deaths) have contributed to political instability and intensified anti-American sentiment. (US drone warfare is strongly opposed by publics in countries far beyond those regions.[5])

Indeed, to perceive or anticipate the adverse consequences of drone warfare we have only to look at the consequences of the previously preferred US strategy for waging the war on terror: capture, interrogation using violent and degrading methods, and indefinite detention. The torture of Arabs and Muslims was a major recruitment tool for al-Qaeda and other terrorist organizations.[6] The consequences of the torture policy, according to Matthew Alexander (pseudonym), a retired Air Force major with extensive interrogation experience in Iraq, included the attraction of foreign fighters to Iraq who conducted attacks that caused the majority of US casualties and injuries, so therefore “at least hundreds but more likely thousands of American lives (not to count Iraqi civilian deaths) are linked directly to the policy decision to introduce the torture and abuse of prisoners as accepted tactics.”[7] Making the same point, former top Navy lawyer Alberto Mora testified to the Senate Armed Services Committee that “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq . . . are, respectively, the symbols of Abu Ghraib and Guantánamo.”[8]

Now that killing has supplanted capture as the preference and the centerpiece of US counter-terrorism strategy,[9] drones have supplanted Abu Ghraib and Guantánamo as symbols, recruitment tools and motivators for America’s enemies.[10] Stanley McChrystal, a retired US Army general who played a huge role in the development of drone warfare and other forms of targeted killing,[11] and counter-terrorism strategizing more broadly,[12] has begun striking a very critical chord: “What scares me about drone strikes is how they are perceived around the world. The resentment created by American use of unmanned strikes ... is much greater than the average American appreciates. They are hated on a visceral level, even by people who've never seen one or seen the effects of one.”[13]

What does Strawser take away from McChrystal’s statements (which he also quotes)? “But such fears [of blowback] rest on empirical questions. And to weigh them properly, we need good data, which we don’t have.” The data “we” (the public) do not have—because it is classified—includes details about the legal authority for drone warfare, the criteria for being designated as killable, the list of countries where the US has conducted or plans to conduct lethal operations, and more. However, we do have empirical data about the negative consequences and hostile reactions to drone warfare, and we also do have evidence that contemporary US counter-terrorism strategy privileges targeted killing and manifests as lethal whack-a-mole. Evidence is provided by every government official who makes a public statement that we are winning the war against al-Qaeda by thinning their ranks or eliminating their top leadership. The larger point of McChrystal’s criticism of drones is that the consequences of their current use may be strategically detrimental: “[I]f their use threatens the broader goals or creates more problems than it solves, then you have to ask whether they are the right tool.”

Thinking in complex and political ways about the implications of drone warfare (and targeted killing more broadly)—which demands a consideration of how strategies relate to both goals and consequences—should be at the center of debates about its morality, not to mention its efficacy. Rather than engaging in this variety of larger strategic thinking, Strawser emphasizes the more analytically narrow instrumental/technological characteristics of drones (i.e., safety to operators and their capacity to dole out violence in proportional ways) to reach the conclusion that the war in FATA (and presumptively other sites where drones are used to attack suspected terrorists and militants) is a just war because whatever evil drones do is lesser than the evil done by those killed (on purpose) by drones. (John Brennan made the same argument during his Senate confirmation hearing to become the next director of the CIA.)

Lesser evil thinking is not well suited to the kinds of complex strategic problems drone warfare and targeted killing raise. As Eyal Weitzman explains: “The principle of the lesser evil is often presented as a dilemma between two or more bad choices in situations where available options are, or seem to be, limited…The principle [is] understood as taking place within a closed system in which those posing the dilemma, the options available for choice, the factors to be calculated and the very parameters of calculation are unchallenged…as if the previous accumulation of events has not taken place, and the future implications are out of bounds.”[14]

Waging war with drones may be a practical means of attacking targets in hard-to-access locales and avoiding the risks and costs of boots on the ground. But it is not abstractly moral, even in the narrow instrumental/technological way, because riskless targeted killing negates an entire side of the “balance” that factors into what war is. Indeed the seductiveness and availability of drone technology is a driving factor in the geographical expansion of what the US government refers to and justifies as war. That expansion is evidence that this is a total war, for which there is no conceivable end or victory unless one subscribes to the absurd idea that there are a finite number of enemies, and that no others will be inspired by the war—and by the drones—to become enemies. Justifying this total, riskless war on lesser evil grounds is neither abstractly moral nor strategically logical. The war may someday end, but not because drones killed all the enemies in the world.

[1] Motivated by US officials’ claims of no or low civilian deaths, the Bureau of Investigative Journalism has been tracking strikes and investigating the identity or status (militant or civilian) of those killed by US drones. As of 31 December 2012, for Pakistan BIJ estimates between 473 and 889 civilian casualties (176 children) among the 2,600 to 3,404 total; for Yemen between 72 and 171 civilians (27-35 children) among the 374 to 1,068 total; and for Somalia between 11 and 57 civilians (1-3 children) among the 58 to 170 total. http://www.thebureauinvestigates.com/category/projects/drones/.

[2] See Lisa Hajjar, “Lawfare and Armed Conflict: A Comparative Analysis of Israeli and US Targeted Killing Policies and Legal Challenges against Them,” Journal of Palestine Studies, forthcoming.

[3] This was the conclusion that the Israeli High Court of Justice reached in its 2006 judgment in PCATI et al. v. The Government of Israel et al. HCJ 769/02. This conclusion has not obtained international legitimacy; on the contrary, the legality of targeted killing is a matter of ongoing international controversy, and the practice as a whole or various aspects of it have been condemned by UN Special Rapporteurs for Extra-judicial, Summary or Arbitrary Execution; and Counter-terrorism and Human Rights.

Lisa Hajjar is an associate professor of sociology at the University of California at Santa Barbara. Her research and writing focus on the laws of war and conflict, human rights and torture. She is the author of Torture: A Sociology of Violence and Human Rights.

To leave a comment, please see the introduction to the DAG-3QD Peace and Justice Symposia, of which this essay is a part, here.